Employers should review and update their employee handbooks and hiring practices to ensure compliance and minimize risk.

On May 26, 2023, Mayor Eric Adams signed into law an amendment to the New York City Human Rights Law (NYCHRL) designed to combat size discrimination. Effective November 22, 2023, the amended NYCHRL will prohibit discrimination on the basis of an individual’s height or weight. Both New Jersey and New York state are considering similar legislation.

New York City joins one state, Michigan, and several cities prohibiting size discrimination. Both Binghamton, New York, and San Francisco, California, prohibit discrimination against an individual’s height or weight, and Santa Cruz, California; Madison, Wisconsin; and Urbana, Illinois, ban discrimination against an individual’s physical appearance or characteristics, which are defined to include height and weight. The Washington, D.C., anti-discrimination law also prohibits discrimination on the basis of an individual’s personal appearance, although height and weight are not included in the definition.

Circumstances in Which Obesity Is a Legal Disability

Federal law does not prohibit size discrimination, and obesity may be considered a disability under the Americans with Disabilities Act only in certain circumstances. For example, the Second Circuit found obesity was not an impairment except in cases where it related to a physiological disorder (Francis v. City of Meriden, 129 F.3d 281 (2nd. Cir. 1997)).

In cases involving clinically diagnosed morbidly obese individuals bringing state law claims, courts have found the evidence supported a finding that the individual was handicapped or disabled (Viscik v. Fowler Equipment Co., 800 A.2d 826 (N.J. 2002) (New Jersey Law Against Discrimination) and Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 707 (S.D.N.Y. 1997)(New York State Human Rights Law)).

What Employers Need to Know About the NYC Law

The amended NYCHRL covers not just morbidly obese individuals. It adds height and weight as classes protected from discrimination―meaning it covers an individual’s height, short or tall, or weight, high or low, and prohibits employers from discriminating on that basis. The law specifies exemptions where preferential treatment on the basis of height or weight is required by a federal, state or local law or regulation. Under the new law, the New York City Commission on Human Rights will identify particular jobs or job categories for which:

• An individual’s height or weight could prevent them from performing the essential functions of the job with or without an accommodation; or
• A certain height or weight is reasonably necessary for the normal operation of the business.

For decisions not covered by these exemptions, employers have an affirmative defense available if they can demonstrate either:

• An individual’s height or weight prevents them from performing the essential functions of a particular job with or without an accommodation; or
• The employer’s consideration of height or weight criteria is reasonably necessary for the normal operation of the business.

Employers can offer incentives that support weight management as part of a voluntary wellness program without violating the amended law.

What This Means for NYC Employers

Employers should review and update their employee handbooks and hiring practices to ensure compliance and minimize risk. Policies that reference protected classes under New York City law should now include height and weight. Job descriptions should not include reference to height or weight criteria unless necessary to perform the essential functions of the job.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.